DEM Completes Mercury Regulations

In 1998, the conference of New England Governors and the Eastern Canadian Premiers Committee established a plan to eliminate mercury emissions throughout the region. Consequently, the Rhode Island General Assembly passed the Mercury Education and Reduction Act of 2001 (the “Act”). Subsequently, the Rhode Island Department of Environmental Management (“DEM”) promulgated Rules and Regulations Governing the Administration and Enforcement of the Rhode Island Mercury Education and Reduction Act (the “Regulations”). Such Regulations are effective as of April 11, 2004.

Mercury is a naturally occurring element that is present throughout the environment and that can be released into the air, water, and soil through human activity. Mercury can harm the kidneys and brains of adults, causing tremors, memory loss, and problems with hearing and vision. Mercury is particularly dangerous for infants, and can cause neurological damage to unborn children if pregnant women are exposed. In the United States, the primary source of mercury emissions is coal-fired power plants or the burning of garbage. Although there are no plants in Rhode Island that burn coal or garbage, as part of the regional mercury reduction campaign, Rhode Island legislators and regulators have acted to restrict certain products that contain mercury in an effort to prevent such products from being burned in other New England states.

The new DEM Regulations were originally developed in 2002 with the assistance of a mercury advisory working group comprised of industry representatives, local environmental and health organizations, state officials and legislative policy analysts. After substantial public comment and amendments to the draft regulations, some of which occurred after the General Assembly made certain changes to the Act in 2003, DEM held a final public hearing in February 2004, and filed the final Regulations in March 2004. Although the Regulations contain several parallel provisions to the Act, the Regulations reiterate the commitment of DEM to regulate mercury in Rhode Island. The stated purpose of the Regulations is “to improve public and ecosystem health by achieving significant reductions in environmental mercury by encouraging the establishment of effective waste reduction, recycling, management and education programs.”

The Regulations provide guidelines for attaining significant reductions in environmental mercury. First, the Regulations address the manufacturer’s notification requirements from the Act. Specifically, no mercury-added product shall be offered for sale or use without prior notification in writing to DEM containing certain information as outlined in the Regulations. Similarly, a manufacturer is required pursuant to the Regulations to update and revise the notification information whenever there is a significant change in the information regarding the mercury-added product. A mercury-added product is defined in Section 4.15 of the Regulations as “a product, commodity, chemical, or a product with a component that contains mercury or a mercury compound intentionally added to the product … in order to provide a specific characteristic, appearance, or quality or to perform a specific function or for any other reason.”

Second, the Regulations clarify the ban on all mercury-added novelties in Rhode Island. A mercury added novelty is a mercury-added product intended for personal or household enjoyment. Prohibited products include certain figurines, toys, jewelry, holiday decorations, apparel, and candles, but the Regulations exempt those items that have a button cell battery as their only mercury component. Pursuant to Section 6.1 of the Regulations, no such novelties shall be offered for sale or use or distributed in Rhode Island after January 1, 2003.

Finally, the Regulations spell out the limitations on the use of elemental mercury. Pursuant to Section 7.1 of the Regulations, a provider of elemental mercury in Rhode Island shall only distribute such mercury to end-users for allowable uses, namely medical, dental, or research purposes. In accordance with the terms of the Act, any transfer of elemental mercury must be recorded by use of the form attached to the Regulations, wherein detailed information about the transfer and the intended use of the mercury must be provided to DEM.

Effective July 1, 2005, a violation of any of the provisions of the Act, or any rule or regulation promulgated pursuant thereto, including the Regulations discussed above, shall be punishable by a civil penalty up to $1,000 for the first violation, and up to $5,000 for each subsequent violation. Accordingly, it is important that the regulated community understand the Regulations and the specific requirements thereof in order to ensure compliance. Copies of the Regulations may be obtained from DEM’s website at www.dem.ri.gov